M (A Minor) [2011] EWCA Civ 317

Court of Appeal judgment concerning the granting of leave under s. 47(5) Adoption and Children Act 2002 for a parent to defend an adoption. Appeal dismissed.

The case concerned a two year-old boy in relation to whom final care and placement orders had been made. At the final hearing the court had not expressly dispensed with parental consent and had dealt only briefly with the placement order. In the circumstances of the case however the Court of Appeal was satisfied that the judge's approach had been "humane" to the mother and that his order should not be set aside.

The mother had also applied for leave to defend the adoption order application. Leave had been refused and the mother appealed to the Court of Appeal seeking guidance as to how the courts should deal with the issue. The mother also argued that the judge had applied the wrong test by asking himself what was in the best interests of the child, as opposed to applying the statutory test.

The Court of Appeal declined the request to offer further guidance, considering that the judgments in Re P [2007] and Re W [2010] RWCA Civ 1535 were sufficient. The appeal was dismissed.

2. By 23 May there was an interim care order and final care and placement orders were made on 29 May 2009 by His Honour Judge Booth. He deals at length with the local authority's application for a care order in his judgment, an ex tempore judgment of that day. He explains in paragraph 48 that he has but a limited choice between the local authority care plan for placement and adoption or an adjournment for further assessment of the paternal grandparents who were putting themselves forward as possible applicants for special guardianship. The judge was of the view that the balance came overwhelmingly in favour of the first alternative and he made the necessary care order and approved the care plan. There and then he dealt with the placement order application in words which have been criticised by Ms Eleanor Platt QC who represents the appellant today.

3. The words of the judgment are indeed brief, but they were stated to be deliberately brief and I have no doubt at all that he was anxious not to extend the distressing occasion for the mother who had just learned that her child was bound for placement outside the family in accordance with the local authority care plan. So he simply expressed his judgment that it was entirely appropriate to make the placement order. He did not specifically refer to dispensation with parental consent, but the judge's objective was a humane one and it is noticeable that the mother, who was represented on 29 May, did not make any complaint then or subsequently to this court of the brevity of the judicial language.

4. So the next stage following the order of 29 May 2009 was the determination of the future involvement of the birth family. The judge had granted an application for the termination of direct contact and an arrangement was put on foot for the reciprocal exchange of information about Joshua twice a year. Accordingly, the appellant's last contact with Joshua was in July and in September Joshua was placed with prospective adopters.

5. The application for leave to defend the adoption order application was issued on the mother's behalf on 10 June and was decided and refused by Judge Booth on 6 August.

6. The procedure in the court below has puzzled me somewhat. The application was obviously one that was unlikely to find favour with the local authority and certainly not with the prospective adopters. The application was, we are told, duly served constituting the prospective adopters as the first and second respondents and the local authority as the third respondents, but such information as we have indicates that the local authority simply sent a social worker to observe the proceedings. The first and second respondents were represented by their solicitor, but the judge indicated that he did not require her to remain whilst the application was developed. She left and returned once the judge had announced his conclusion.

7. The application for permission to appeal the refusal of leave was rejected by Judge Booth, renewed in this court on 27 August, and provisionally refused on paper by me on 20 September. However, on the subsequent oral hearing permission was given by Ward LJ on 28 September. Apparently he stayed the application for the adoption order which had been listed for 30 September. And so we are constituted this morning to determine the appeal.

8. The appeal has been very well prepared since the grant of permission. We have an excellent appeal bundle, we have an equally carefully prepared agreed bundle of authorities and we have had the advantage of skeleton arguments, not only from Ms Platt QC. and her junior but also from Ms Singleton QC with Ms Cavanagh for the prospective adopters and Ms Cross QC and Mr Hart for the local authority. To save public expenditure we indicated that it was unnecessary for both respondents to attend given that they were advancing almost identical submissions.

9. Ms Platt has suggested that there is a need for guidance from this court as to how judges in the court below should exercise the discretion which is their responsibility under section 47(5) of the Act. I will briefly, therefore, introduce the statutory provisions. Section 47(5) of the Adoption and Children Act 2002 provides:

"The court cannot give leave under subsection (3) or (5) unless satisfied that there has been a change in circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made."

Subsection (3) had earlier provided

"A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court's leave."

10. Reverting to section 1 of the statute, subsection (7) deals with applications for leave in the sense that subsection (7) is a definition of the expression "coming to a decision relating to the adoption of a child" which appears in subsection (1) of section 1 and in its definition subsection 1(7)(b) states that a decision relating to the adoption of a child includes "coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act".

11. It has been decided by this court in the case of re P, as is conceded by Ms Platt, that the application under section 47(7) falls within the definition contained in section 1(7)(b) and accordingly all the provisions of section 1(1) and (4) are brought into play, so that the judge exercising the discretion has a good deal of statutory guidance as to how he is to proceed. Ms Platt helpfully refers to the decisions of this court in re P [2007] 1 WLR 2556 and the recent decision of this court in re W [2010) EWCA Civ 1535. It seems to me those two authorities also give ample guidance as to how the judge of the court below should proceed.

12. So Ms Platt's primary submission is that implicitly but not by express language the judge has applied the wrong test. He has not asked whether he should grant leave to defend having regard to the factors contained in section 1(1) to (4), but he has rather refused by asking himself: would adoption be in the best interest of Joshua? That test, says Ms Platt, is the test that the judge has to apply at the ultimate stage if reached, namely a trial following the grant of leave to defend.

13. I am sure that that submission is well-founded, but I am simply not persuaded that there is anything in the language of the judge nor anything implicit in his judgment as a whole to suggest that he did adopt that wrong test. The only criticism that can be mounted, which is implicitly recognised in the skeletons that have come from the respondents to this appeal, is that the judge as it were directed himself as to the statutory checklist only at the outset of judgment and did not revert to it when he came to explain the crucial exercise of discretion. So going to the judgment below the judge, having referred to the background in paragraph 4, recorded that he had to apply a two fold test. First, he had to be satisfied that there had been a change of circumstance since the placement was made sufficient to satisfy section 47(7) and, if that hurdle was overcome, he had to exercise a general welfare discretion under section 1 of the Act. He summarised the relevant subsections and in particular set out subsection (4) in its full terms.

14. He then continued to consider whether sufficient change of circumstance had been established. And it is to be remembered that he assessed only the case advanced by the applicant. There was no contrary case put by those upon whom the application had been served. He came to the conclusion (expressed in paragraph 13) that there had been a change of circumstance sufficient to meet the test. He then continued that that only led him to exercise the wider discretion where he had to put (and I use his language) "Joshua's … interests paramount" and had "to apply those particular factors that relate to his welfare in the exercise of my discretion".

15. In paragraphs 14 to 17, he explained why it was that he exercised the discretion against granting permission to defend. The words of the judge are perfectly sufficient to explain to the mother the factors that tip the balance against her. It can only be said that it would have been preferable if he had tailored that explanation to the checklist, particularly the checklist in section 1(4). However, the words that he did use, not particularly attached, comprehend the general area and I am quite sure that had the judge more meticulously presented his conclusion by reference to factor (a), factor (b), factor (c), all the factors in subsection 1(4), he would simply have been reaching the same conclusion in other language.